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This is one of my serious editorials. There aren't many of
them, but they do exist. However, just because I am serious here,
it does not mean that I do not intend to get to a science fictional
idea eventually. But you will have to wait a while for me to get
there. In the July 15, 1996, issue of the NEW YORKER magazine,
page 72, Judge Sol Wachtler argues against the current call for
mandatory cookbook (my term) sentencing for crimes. He believes
that one of the major reasons you have a judge is to examine the
mitigating circumstances of a crime and to decide what the
punishment should be. He asks the question should a mother who
steals powdered milk to feed her child be given the same punishment
as a man who steals powdered milk to cut heroin before selling it.
He feels not and he feels that you have a judge to realize that
former crime should get a light punishment and the latter a heavier
sentence.

Immediately I see three things wrong with the judge's argument
here. The first and biggest objection is that possessing and/or
selling heroin is a crime that carries a penalty and feeding a baby
is not. Hence we are unlikely to see the two people getting the
same punishment for their actions overall, even if they get the
same punishment for theft of the milk. It is not clear to me from
this argument that the theft should not be equally punished, but
the heroin pusher should get an additional sentence for the
possession and sale of heroin. My second objection is that while
Judge Wachtler talks about the mitigating circumstances of the
crime he omits any reference to the amount of damage that each
crime does. It may well be unintentional, but if the mother's
stealing the milk causes some serious damage that the heroin
pusher's theft does not, that, in my opinion, should be factored
into the sentences. Let us say for the sake of argument that the
grocer sees the woman's theft and chases after her, right into the
path of a speeding car. Suppose the car hits the grocer and kills
him. The damage was precipitated by the woman. Her motives for
the theft may have been as pure as Jean Valjean's, but she created
a situation that led to the grocer's death and I would think that
should be factored into the sentence. Judge Wachtler does not
suggest that the amount of damage done should be factored into the
sentencing process, and I feel this is a serious omission. My
third complaint with his example, admittedly a lesser one, is that
by bringing the gender of the two offenders into his description he
seems to be implying that it is a part of the mitigating
circumstances. If it is a man stealing milk for a child and a
woman who is the heroin pusher I would hope that the judge would
feel exactly the same way about the case. Judge Wachtler chose to
describe the two cases in a non-gender-neutral manner and that is
frankly a bit irksome.

My feeling, however, is that one of the great advantages of
mandatory sentencing is the uniform application of the law. If the
law takes out of the hands of the individual judges the specific
punishment, it means that the question of whether a specific judge
is lenient or strict will no longer affect the fate of the
criminal. And regardless of what rights the accused has and has
not, every person accused of the same crime should have precisely
the same set of rights. If the accused is convicted, the degree of
punishment should not be a matter of the "luck of the draw,"
dependent on which judge was chosen to decide the case.

But there really are two independent factors here. One is the
uniformity of the application of the law, which Judge Wachtler does
not mention, the other is the degree of complexity and the factors
taken into account in the sentencing decision. Judge Wachtler
seems to believe that the only way to have a system that takes into
account of all the mitigating factors is to give judges complete
autonomy in sentencing. It is Judge Wachtler's belief that complex
decisions require a great deal of localized autonomy.

That may have been the case at one time, but we are reaching a
higher level of technology. We are approaching a time when the
most complex decisions cannot be entrusted to individual autonomy.
For years there have existed artificial intelligence programs that
diagnose disease. Diagnosing disease is a fairly complex decision
process. Yet there exist computer programs that do a good job of
asking the right questions and from the answers diagnose disease
with a fairly respectable reliability. And the process is executed
the same way from Seattle to Miami. How different is the
complexity of the process diagnosing illness and that of
determining sentences? My guess is that they must be of about the
same order of complexity. If that is the case we could have a
national AI program that would suggest sentences for convicted
criminals. It would take a while to debug, as AI programs
inevitably do. At least initially it would be only advisory and if
it gave an absurd sentence, it could have additional questions
programmed into it to refine the decision tree. Eventually it
could be the basis of a uniform national sentencing structure. I
hasten to add I am not saying the program would determine guilt or
innocence. It would only assign reasonable sentences to the set of
circumstances of a crime. We may live to see that done and it
would be a fairer way of determining sentences that what we
currently have. And if it would be fairer, we have a
responsibility to at least reach that level of equity, if not this
way at least by some other way that is as good. [-mrl]